Final Order in GSU E-Reserves Case Is a Rebuke to Publishers

By Andrew Albanese
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Aug 13, 2012

On August 10, Judge Orinda Evans filed her final order for relief in the Georgia State University e-reserve case, flatly rejecting the plaintiff publishers’ sweeping proposal for relief and, in a stunning development, ordering the publishers to pay the defendants’ attorneys’ costs. The order represents the culmination of a contentious four-year legal battle, Cambridge University Press et al v. Patton et al, in which three academic publishers, (Oxford University Press, Cambridge University Press, and Sage Publications, supported by the AAP and with costs partially underwritten by the Copyright Clearance Center) alleged that GSU administrators systematically encouraged faculty to commit copyright infringement via GSU’s e-reserve systems as a no-cost alternative to traditional coursepacks. The order follows Evans’ May 11 verdict in which she found GSU liable on just five of 99 counts.

The order is a sharp rebuke to publishers. Despite prevailing on just five of 99 counts, the publishers had argued that the five infringements the court found justified a sweeping injunction that would have, among other things, mandated extensive recordkeeping at GSU, and allowed publishers to monitor e-reserve practices on GSU’s systems. In her final order, however, Evans, while clarifying elements of her May 11 verdict, ordered only that GSU “maintain copyright policies…not inconsistent with the Court's Order of May 11, 2012 and this Order,” which, observers say, GSU already does.

Evans wrote that “four factors” led her to reject the “highly regimented” injunctive relief publishers proposed:

The first is that fair use determinations are “fact-intensive and specific” to each individual case.

Second, Evans wrote that she was convinced the GSU defendants “did try to comply” with copyright laws.

Third, the individual defendants may have “oversight responsibility,” but not “line responsibility” for making individual fair use choices.

And last, Evans noted, the “defendants work at taxpayer expense to carry out their duties.” Given “the totality of the circumstances,” she wrote, there is “insufficient reason to impose a burdensome and expensive regimen of record-keeping and report-making.”

The awarding of Defendants’ legal fees especially stings. Under the law, attorneys costs can only be awarded to the prevailing party, and technically speaking, one could argue that the publishers prevailed. After all, they proved five counts of infringement, and those five counts were sufficient for the court to issue an injunction (although not the injunction publishers wanted). Yet, in her order, Evans proclaimed GSU the prevailing party based on the totality of the case. Of the 75 claims that went to trial, she explained, publishers failed to establish a prima facie case for infringement in 26 instances; in 33 instances “digital permissions” were unavailable; and in 18 instances, neither “digital nor hard copy permissions” were available.“Although the Court does not doubt Plaintiffs’ good faith in bringing this suit,” Evans concluded, “Plaintiffs’ failure to narrow their individual infringement claims significantly increased the cost of defending the suit.”

The Defendants will now file “a detailed request" for an award of attorneys’ fees by August 24, 2012—a document that should offer some idea of just how much money was spent on this case over four years of litigation. The Plaintiff publishers will then have until September 10 to file an objection, and if the two sides can’t work out their differences, a hearing is set for September 14.

The good news for publishers, if any, is that at least the case is over. The litigation has been an uphill battle almost from the start, and certainly from the moment GSU won a protective order in 2009 limiting the evidence to its conduct after a new, tighter e-reserves policy was adopted. Indeed, many observers expected the case would be settled at that point, as the introduction of a revised policy gave both sides a chance to depart gracefully, and a trial was seen as risky. The battle, however, went on. And, it may yet go on. In an August 13 statement, the Association of American Publishers said the plaintiffs are considering an appeal.

“The District Court’s decision is marred by a number of serious legal errors," the statement reads. "As with the initial decision to bring suit, the decision regarding an appeal will be based on a considered assessment that takes into account the extent to which this ruling, which we believe to be legally vulnerable on multiple grounds, endangers the creation and dissemination of high-quality academic work.” Publishers say Evans' ruling stretches fair use "beyond recognition" and "excuses copyright violations by GSU and endorses unauthorized copying and distribution of academic works well beyond what the law allows and what universities across the country consider reasonable."

As it stands, however, the final order represents a significant legal setback for publishers. In an issue brief, the Association of Research Libraries' called Evans' May 11 verdict "a high-profile defeat after a long and expensive campaign." Evans' final order, says ARL's Brandon Butler, only cements that opinion. In the order, Evans goes so far as to deem GSU the "prevailing party." And the decision to award legal fees, Butler says, "tells us that the publishers really crossed a line" with their infringment claims. "Hopefully this will be a cautionary tale to other predatory parties who are thinking libraries might make an easy target for a copyright shakedown," he told PW. "Of course, this probably only makes it more likely that the publishers will double down on their claims and appeal."

Rather than defeat the practice in court, however, the GSU litigation has instead served to legitimize e-reserves, establishing "a very comfortable safe harbor for fair use of books on e-reserve," notes the ARL issue brief, with libraries "free to take more progressive steps." In her 350-page ruling and in her final order, Evans set some "bright line" rules for the practice and brought some clarity to what is acceptable use. But those lines are nowhere near where the publishers believe they should be drawn. The net effect: publishers have not only lost the GSU suit, they also have lost a lot of the negotiating room that comes with the ability to threaten a suit.

"The lawsuit has been a barely mitigated disaster for publishers," New York Law School's James Grimmelmann bluntly told PW. "In hindsight, [the publishers] should have declared victory and gone home after GSU tightened up its policies in 2009."

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